Levels of Appeal for Social Security Cases

1. Initial Application

The claimant must sign a written application (except in very unusual circumstances) and complete paperwork explaining his or her disability and listing medical treatment. The case is sent to the state DDS (Disability Determination Service) to be evaluated under Social Security’s rules. If a claimant is denied at this step, the claimant usually has 60 days to appeal to the next level.  In FY 2003, Tennessee had the lowest favorable decision rate in the nation at 25.7% (down from what was still the lowest in the nation in 2002 at 26.5%) The only other states with less than 30% were Alabama at 29.4%, Mississippi with 27.2%, Colorado with 26.3% and Georgia with 28.2%, Ohio at 28.9% and Puerto Rico at 29.4%.

2. Reconsideration

The claimant’s case is sent back to DDS to be “reconsidered.” If a claimant is again denied at this step, the claimant has 60 days to appeal to the next level. In FY 2002 Tennessee DDS paid only 10.1% at this level, the 5th lowest in the nation. In FY 2003, Tennessee DDS paid only 7.9% of all cases; the only worse states were Mississippi at 7.1% and Wyoming at 6.9%.

3. Hearing Level

The claimant’s case is sent to the local Office of Hearings and Appeals, where the case is assigned to an Administrative Law Judge (ALJ) who will hear the case. The ALJ has a duty to ensure unrepresented client’s cases are fully developed, but OHA will usually rely on an attorney to provide medical evidence for the file. (I highly recommend you submit any evidence as soon as possible, because most ALJ’s review the file, and will not want to delay the hearing if you submit too much on the day of the hearing). The ALJ will issue a detailed, written decision. The ALJ will also close the record, and it is very difficult to get any additional medical evidence in to the record once the ALJ’s decision has been issued. If it is unfavorable, the claimant has 60 days to appeal to the Appeals Council by filing a Request for Review. (If the same case has previously been remanded by the Appeals Council to the ALJ to deadline is only 30 days to file written exceptions to the Appeals Council). –SSA issues new final rules pertaining to video tele-conferencing (“VTC”). 68 Fed. Reg. 5210 (Feb 3, 2003), 20 C.F.R. 404.936 and 416.1436. Claimants may object, but should do so “at the earliest possible opportunity” and the request must be “timely” (but ‘timely is not defined and left to the discretion of the ALJ.) There is not right to object to an expert appearing by VTC.

4. Appeals Council

This is an administrative appellate level that is made up of “administrative judges” who are not full ALJ’s; however, they review the file and any written arguments made. They may also consider new evidence, but there must be “good cause” for not having submitted it earlier. This level can take as much as two years, and occasionally more. The Appeals Council may reverse the ALJ and issue a fully favorable decision, or remand the case to the ALJ for further proceedings. In most cases, the Appeals Council issues a form letter denying the Request for Review, and the ALJ’s decision becomes the final decision of the Commissioner. If the Request for Review is denied the claimant has 60 days to seek judicial review in Federal Court if the case merits that level of review.–In 2002 the average claim that was denied at all four steps, up to the Appeals Council had a total time before the Agency of 1,153 days.

5. Federal Court Review

The standards for review by a Court are limited. See 42 U.S.C. 405(g). The Court may only overturn the Commissioner’s decision if the Court finds the decision was not based on substantial evidence or that the Commissioner made an error of law. There is no de novo review. The Court is empowered to reverse the Commissioner’s decision, but in many cases, the case is sent back for a new hearing. The Court will also very often uphold the Commissioner’s decision.

6. Court of Appeals

Of course, if a case is denied at the District Court level, a claimant may proceed to the Court of Appeals. Recent statistics have shown an affirmance rate of Social Security denials as high as 98%. An informal review of Sixth circuit cases in 2002-2003 shows that almost all cases are appeals by denied claimants, almost all waive oral arguments, and almost all lose in unpublished decisions that are typically two pages long.

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